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Is EPA shifting towards regulating fracking under the Clean Water Act?

As EPA moves forward with its fracking study (PDF), comments this week from the Agency’s science advisors may provide a clue into EPA’s thinking on how to increase regulation over the natural gas industry. EPA’s Science Advisory Board (SAB) spoke publicly this week on their thoughts for the scope of the fracking study. Much of the comments were focused on keeping the scope of the study narrow—somewhat surprisingly in light of recent criticism of EPA’s oversight of the natural gas industry.

Echoing some of industry’s comments (PDF) members of the SAB raised concerns about taking on too much in the study in light of constrained budget and time pressures (the study is due out by the end of 2012). For example, several members of the SAB panel noted that detailed toxicological studies based on data from the proposed case studies would be too expensive and take too long. The chairman of EPA’s SAB, Dr. David Dzombak, suggested the study should take a risk-based approach that focuses on the potential impacts of produced water once it reaches the surface, and prioritize based on the highest-volume and highest-hazard chemicals typically used in fracking fluid.

It is becoming clear, particularly after the New York Times series, that the fracking debate is going to be heavily focused on water issues and management of produced fracking water in particular. What makes studying this issue particularly vexing is that industry practices are different throughout the country, based on geology, permitting requirements, and other site-specific factors. Nonetheless, the potential risks associated with produced water appear not to be very well understood. For example, despite the sensational claims made in the New York Times piece about levels of radioactivity in fracking wastewater, the Pennsylvania State Department of Environmental Protection (DEP) just released news of results that show water samples taken in November and December downriver from Pennsylvania sewage treatment plants that handle wastewater from natural gas drilling operations showed no problematic levels of radioactivity. Yet, the next day the DEP revealed that statewide statistics on wastewater production substantially overstated the amount of water produced by natural gas wells, thereby overstating the volume of produced water being recycled.

EPA’s draft fracking study is already focused on a panoply of water-related issues (including how produced water with radioactivity is managed by publicly owned treatment works (POTWs)). While disclosure of fracking fluid, and the current fracking exemption will continue to receive attention, it may be that EPA is shifting focus to other authorities. The establishment of Total Maximum Daily Loads (TMDLs) for certain high hazard constituents and even TMDLs on the watershed level, and new Effluent Limit Guidelines (ELGs) for the natural gas industry—both under EPA’s Clean Water Act authority—would be natural options for water-related federal regulation. Stay tuned—we may be seeing a shift in thinking by EPA from focusing regulatory authority on the Safe Drinking Water Act (SDWA) to other more traditional federal statutes.

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